VZCZCXRO7945
OO RUEHROV
DE RUEHLGB #0405/01 1181129
ZNR UUUUU ZZH
O 281129Z APR 06
FM AMEMBASSY KIGALI
TO RUEHC/SECSTATE WASHDC IMMEDIATE 2679
INFO RUEHROV/AMEMBASSY VATICAN IMMEDIATE 0004

UNCLAS SECTION 01 OF 03 KIGALI 000405 
 
SIPDIS 
 
DEPT FOR AF/C AND DRL 
DEPT ALSO FOR EUR/WE JLARREA 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PHUM PREL SOCI KDEM KJUS VT RW
SUBJECT:  Embassy Comments on Vatican Note on Gacaca 
 
REF:  A. VATICAN 0059 
 
      ¶B. KIGALI 393 
 
¶1.  Summary:  Ref (A) Vatican note criticizes the gacaca 
tribunals in Rwanda for not serving the purposes for which 
they were created.  It characterizes the gacaca process as 
politically manipulated and procedurally flawed, citing 
specific concerns.  While Embassy recognizes, as does the 
GOR, that there are weaknesses in the system, in its view 
the note does not accurately reflect the process.  Post 
raised with the Director of the Legal Unit, National Service 
of Gacaca Jurisdictions, some of the cited areas of concern. 
He held that there is no presumption of guilt against those 
who appear before gacaca.  Evidence against the accused is 
presented publicly during an open-forum evidentiary hearing 
where everyone is given the opportunity to comment on the 
evidence and the individual.  The accused are allowed to 
have others testify on their behalf.  Prisoners are not 
given reduction or suspension of sentence for denouncing 
accomplices, and the penalty for providing false testimony 
is imprisonment.  He asserted that gacaca was established as 
an independent body and is not subject to political 
influence.  It does not target Hutus or property owners but 
individuals from every sector of Rwandan society who 
participated in the genocide.  End summary. 
 
Provisional Release of Prisoners 
-------------------------------- 
 
¶2.  The paper notes that innocent individuals remain in 
prison while those responsible for the genocide are freed, 
creating resentment among both Hutus and Tutsis. 
 
¶3.  Comment:  The approximately 50,000 prisoners who were 
provisionally released by presidential decree between 2003 
and 2005 were the elderly, sick, minors, or those charged 
with less serious genocide crimes (categories 2 and 3) who 
had already served out their maximum sentences and had 
received credit for time served.  According to the 
International Committee of the Red Cross, the provisional 
release relieved some of the overcrowding in prisons, 
improving the prison standards for the remaining prisoners. 
Subsequently, some of the released prisoners were returned 
to prison based on additional evidence implicating them in 
Category 1 genocide offenses. 
 
False Denunciations 
------------------- 
 
¶4.  The paper states that detainees can plead guilty and 
denounce their accomplices in exchange for a reduction or 
suspension of sentence.  As a result, false denunciations 
have exacerbated hatred and mistrust, undermining the 
reconciliation process and the search for truth. 
 
¶5.  Comment:  According to Augustin Nkusi, Director of the 
Legal Unit, National Service of Gacaca Jurisdictions, the 
number of false denunciations is very small; he estimated it 
at less than 10 percent.  Of the 7,000 accused genocidaires 
tried since last year during the pilot phase,  approximately 
600 were acquitted based on factors related to the strength 
of the evidence, not due to false denunciations.  At the 
beginning of the pilot phase, approximately 20 percent of 
those accused were acquitted; the acquittal rate is now an 
estimated 12 percent. 
 
¶6.  Individuals may be found guilty by a panel of gacaca 
judges on the basis of a single person providing credible 
testimony.  The penalty for providing false testimony, as 
determined by the panel of judges, is 3-6 months' 
imprisonment for first-time offenders, and 6-12 months' 
imprisonment for recidivists.  The panel of judges has the 
authority to release falsely denounced individuals.  Nkusi 
estimated that 600 individuals, in additional to the 600 
acquitted after trial, were released during the pilot phase 
prior to trial after it was determined that they were 
falsely accused. 
 
¶7.  Detainees do not receive a reduction or suspension of 
sentence for denouncing accomplices, but can get reduced or 
suspended sentences for confessing to their own crimes. 
Conviction of a Category 1 crime (rape, other sexual 
offenses, or planning the genocide) is punishable by death 
or life imprisonment, or a reduced penalty of 25-30 years if 
the accused confesses prior to the information-gathering 
phase.  If the accused confesses after the information- 
gathering phase, there is no reduction of sentence (although 
there is currently a proposal to provide some reduction). 
 
¶8.  Conviction of a Category 2 offense (intentional killing, 
 
KIGALI 00000405  002 OF 003 
 
 
causing injury with intent to kill, or causing injury 
without intent to kill) carries a sentence of 25-30 years' 
imprisonment, or a reduced sentence (half-time in prison, 
half-time in community service) of 12-15 years with 
confession after the information-gathering phase, or 7-12 
years with confession prior to the information-gathering 
phase.  Conviction of a Category 3 offense (crimes against 
property) carries only a fine.  (Note:  In June 2004, then 
Category 2 (causing injury with intent to kill) and Category 
3 (causing injury without intent to kill) were combined into 
one category (current Category 2), resulting in a three- 
category system.  According to Nkusi, the two categories 
were combined because it was difficult for gacaca judges to 
determine individual intent.  End note.) 
 
Preparation of Dossiers 
----------------------- 
 
¶9.  The paper estimated that over 20,000 innocent people (or 
20 percent of the prison population) remain imprisoned 
because they have not pled guilty or denounced others, and 
noted that there are no files on these individuals that 
would allow them to appear before a gacaca tribunal. 
 
¶10.  Comment:  Nkusi maintained that those remaining in 
prison have either confessed to their crimes or were 
arrested and imprisoned prior to the establishment of the 
gacaca tribunals.  He explained that when the gacaca process 
establishes the innocence of imprisoned individuals, they 
are unconditionally released.  Currently, there are 5,000 
petitions for the release of prisoners who were found not 
guilty by prison gacaca tribunals.  (Note:  In addition to 
the gacaca tribunals in each community, there are gacaca 
tribunals within the prison system, one in each prison.  End 
note.)  The National Service of Gacaca Jurisdictions is in 
the process of reviewing those petitions. 
 
¶11.  Nkusi explained that preparing a dossier on a prisoner 
is difficult and time-consuming, especially in cases where 
witnesses have died.  In addition, in the immediate 
aftermath of the genocide and civil war, the Rwandan 
Patriotic Army (RPA) dealt with the chaotic situation in 
various ways; in some cases the military arrested 
individuals without properly documenting the arrests.  As a 
further complication, during the massive repatriation of 
Rwandans from DRC in 1996, some voluntarily confessed their 
crimes to police and were imprisoned but are now retracting 
their confessions.  (Note:  In 1996, up to 2 million 
Rwandans living in eastern DRC returned to Rwanda after the 
RPA entered the DRC to pursue ex-Rwandan Armed Forces and 
genocidaires.  End note.) 
 
Educated Hutus and Property Owners 
---------------------------------- 
 
¶12.  The paper alleges that the accused are primarily 
educated Hutus or property owners, and that "political 
authorities" determine beforehand the individuals to be 
judged and the sentences to be applied. 
 
¶13.  Comment:  There has been no survey or other evidence to 
support the view that the accused are primarily educated 
Hutus or property owners.  In fact, given that approximately 
82 percent of Rwanda's population is involved in subsistence 
agriculture, it is likely that those accused are primarily 
uneducated farmers.  Nkusi maintained that gacaca does not 
target specific categories of individuals.  Individuals from 
every sector of Rwandan society were involved in the 
genocide because of the way in which the former government 
orchestrated it -- horizontally and vertically throughout 
the population.  He noted that for the most part educated 
people did not participate directly in the killings but did 
incite violence, a crime punishable under gacaca. 
 
¶14.  According to Nkusi, decisions on the individuals to be 
judged or sentences to be applied are not made a priori. 
All decisions are made by majority vote (minimum of 5 votes) 
by a panel of 9 trained gacaca judges after listening to and 
weighing all the testimony presented for and against the 
accused. 
 
Atmosphere of Gacaca 
-------------------- 
 
¶15.  The critique notes that the atmosphere is tense, that 
the majority of gacaca participants are hostile towards 
those who are brought before the tribunal.  It also notes 
that there is a presumption of guilt against those who 
appear before gacaca, that innocence must be proven, which 
is difficult for the majority of those coming from prison, 
 
KIGALI 00000405  003 OF 003 
 
 
and that defense lawyers are prohibited. 
 
¶16.  Comment:  The atmosphere may be tense, as in any 
regular courtroom, as accused perpetrators come face to face 
with survivors and victims' families, sometimes for the 
first time since the genocide.  However, Nkusi held that 
there is no presumption of guilt against those who appear 
before gacaca.  Before an individual is brought before 
gacaca for trial, an accusation must first have been made 
against that individual and an evidentiary hearing held. 
During the hearing, evidence is presented publicly, and 
anyone is free to comment on the evidence and the 
individual. 
 
¶17.  There are no designated defense lawyers because, unlike 
the regular court system, gacaca is an inclusive, 
participatory process in which everyone has equal standing 
and lawyers do not dominate.  Lawyers, however, in their 
private capacity as Rwandan citizens, are free to speak in 
defense of accused individuals, and the accused are allowed 
to have witnesses testify on their behalf.  Nkusi explained 
that by law everyone is required to provide information on 
the genocide and that such information is not an 
"accusation," per se, but a necessary element of the 
information-gathering phase. 
 
Political Authorities and Ibuka 
------------------------------- 
 
¶18.  The paper states that "the whole process seems to be a 
set-up."  Although in theory everyone has the right to speak 
up, in practice the "political authorities" and members of 
Ibuka (Association of Genocide Survivors), "who are under 
the strong influence of the regime," speak first, and some 
are paid to provide false testimony. 
 
¶19.  Comment:  Nkusi stated that the law is clear on the 
issue of interference.  If interference is reported, it is 
investigated and the individuals involved are denounced. 
Gacaca tribunals were established by law as independent 
bodies and are not subject to political influence. 
Decisions are not made a priori.  They are made by majority 
vote by a panel of 9 judges on the basis of testimony voiced 
during the gacaca proceeding.  "Political authorities" and 
Ibuka members, like any other member of the community, are 
free to speak as individuals in their private capacity and 
do not speak on behalf of their organization or party. 
 
¶20.  Nkusi speculated that there may be some confusion 
because people tend to equate genocide survivors with Ibuka 
and, therefore, may believe that when an Ibuka member speaks 
he is speaking on behalf of the organization.  He observed 
that although there may be some reticence among Rwandans in 
accusing others, especially relatives or friends whom they 
wish to protect, survivors have a vested interest in 
denouncing genocidaires and seeking justice. 
 
Upcoming Trials 
--------------- 
 
¶21.  There are 12,103 gacaca courts throughout the country. 
To date, approximately 7,000 accused genocidaires have been 
tried during the pilot phase of gacaca.  With the 
investigative/information-gathering phase drawing to a 
close, nationwide trials are scheduled to begin in May, 
after adoption of pending amendments to the law on gacaca. 
As we have reported, post recognizes that there are flaws in 
the gacaca system, which the GOR has readily acknowledged 
and is working to improve.  Post will closely monitor the 
process as trials get under way, and will urge full respect 
for human and civil rights for the accused. 
 
Arietti